Double Standards on Display in Kagan Hearings

Roughly since dinosaurs walked the earth, Supreme Court confirmation hearings have featured the spectacle of Republicans and Democrats alike rearranging their principles depending on the party of the nominating president and the nominee. The hearing on Elena Kagan, who completed her testimony Wednesday with other witnesses scheduled to testify late Thursday, has been no exception. On the importance of precedent, on "judicial activism," on whether past political allegiance is a mark against a judicial nominee, and more, what one might think are neutral principles seem to vary depending on senators' political allegiances.

In his questions—speeches, really—to Kagan this morning, for example, Rhode Island Democratic Sen. Sheldon Whitehouse seemed mightily outraged by the Roberts court's overruling of two precedents to reach its 5-4 decision in January striking down a longstanding federal ban on campaign spending by corporations in Citizens United v. Federal Election Commission. But neither Whitehouse nor any of his Democratic colleagues has been heard to complain of decisions by the more liberal justices to overturn conservative precedents (the 2003 ruling striking down laws against gay sex and overruling a major 1986 decision called Bowers v. Hardwick comes to mind).

Nor have Whitehouse or most of his fellow Democrats evinced any respect for a major precedent that the court laid down on Monday, when it held for the first time that the Second Amendment right to "keep and bear arms" restricts state and local gun-control laws, nor for the 2008 precedent holding that the Second Amendment restricts federal gun-control laws, nor for another 2008 precedent reducing from $2.5 billion to $500 million the punitive damage award against Exxon in lawsuits over the 1989 Exxon Valdez oil spill in Alaska. Whitehouse denounced that one without mentioning that the author was since-retired liberal Justice David Souter, whom Whitehouse has lionized in other contexts.

Some of the Republican senators, for their part, while pressing Kagan to swear allegiance to the two recent gun-rights precedents, vigorously defended the precedent-toppling Citizens United decision. Various senators waxed eloquent on the principles that should determine when to overrule a precedent and when not. But it's hard to think of a senator of either party complaining in recent memory about a decision overturning a precedent beloved by members of the other party.

Then there's "judicial activist," a phrase that, as South Carolina Republican Sen. Lindsey Graham observed today, seems to be an imprecation for a judge "who rules in a way that we don't like."

"Our guys say Justice [Thurgood] Marshall was an activist judge," Graham said to Kagan, to whom he has been by far the most friendly Republican. "Do you agree?" She did not, of course, having clerked for Justice Marshall and previously called him one of her heroes. "People on the other side of the aisle are calling the Chief Justice [John Roberts] an activist judge," Graham continued impishly. "Can you name one person, living or dead, who is an activist judge?"

Kagan prudently ducked. But Sen. Al Franken of Minnesota and other Democrats pressed on with the argument that Roberts is a conservative activist and Marshall was not. Now, Marshall was a great man who became a crusading liberal at a time when members of his race were systematically oppressed and the law was on the oppressors' side. Still, it's hard to see as anything but activist Marshall's view that, even after he had helped end that system of oppression, justices should "do what's right and let the law catch up."

Perhaps if Graham had been able to put Whitehouse on the stand, he would have asked, "Can you name one liberal, living or dead, who is an activist judge?" Or perhaps he would have asked Republican colleagues such as Sen. Jeff Sessions, "Can you name one conservative, living or dead, who is an activist judge?"

Some Republicans, meanwhile, made a big point of Kagan's lack of judicial experience, a deficit that didn't seem to bother those who were fans of conservative Justice William Rehnquist, who was nominated in 1971 by President Nixon, even though he had no pre–Supreme Court judicial experience either. Sessions and other Republicans also worked hard to prove that Kagan was "progressive"—a sin to which she confessed—or even "liberal." But what did they expect from a liberal Democratic president?

Kagan herself could be accused of applying a different sort of double standard by backing away this week from her argument in a 1995 book review that nominees should be willing to detail their views on specific issues. But in fairness, she has shown herself more willing than any other recent nominee "to discuss forthrightly her views on the law and how she would approach judging," as former acting solicitor general Walter Dellinger wrote in The Washington Post. And no less a judicial icon than Rehnquist similarly backed away in his own confirmation testimony from a 1959 article in which he had argued that senators should press nominees for specific answers.

Whether senator or nominee, it seems, where you stand on such principles depends on where you sit.